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The ICC Bias Problem: Africa in the Shadows of the International Criminal Court

By Mustapha Kah, an LLM student at the University of The Gambia, and social and current affairs commentator. He is the founder of Debate Gambia Association, a fellow of President Obama’s Young African Leaders Initiative, and nominated for Youth of the Year Award organized by Gambia Radio and Television Services.

Abstract

When the Rome Statute came into life, many people expressed optimism that a new world order of peace and accountability was in the making. In Africa, the International Criminal Court (ICC) was seen as a new dawn for victims of numerous human rights abuses and violations.[1]The years preceding the establishment of the court were among the most turbulent in the history of the world. In an address to the Royal Society of Literature in London in 2000, Margaret Drabble, a British novelist, described the 20thCentury as “A Beastly Century.”[2]

This article looks at the various issues confronting the court’s operations in Africa. It will examine the issues that necessitated the courts establishment including the general human rights situation; the role played by the continent in the formation of the court; the court’s focus on Africa; the issue of selective justice; the role of the Security Council in Bashir’s case; white justice and the political context of the court including reaction of the African Union (AU). Finally, I will delineate a way forward for the court’s operations in Africa.

Introduction

The International Criminal Court (ICC) came on the backdrop of the Nuremberg Court,[3]which was set up to try those who had committed grave crimes during the Second World War. Calls for a permanent court to try the most callous breaches of international humanitarian law were stalled due to the Cold War. But it was in 1989 – during the 44thSession of the United Nations General Assembly – that the Caribbean Island state of Trinidad and Tobago represented the idea of the court to delegates.[4]

The distinct events in Rwanda and the former Yugoslavia once again brought the need to create an international court to the fore of the international legal plane. Acting under Chapter VII, the UN Security Council took the bold initiative to create two distinct bodies to punish those responsible for the Yugoslavia and Rwanda genocides in 1993 and 1994 respectively.[5]

Aware of the budding possibilities of a repeat of the Rwandan and Yugoslavia genocides, more sustained efforts were made to ensure that a permanent court was established. The negotiating process to create the court began as early as 1989 through the efforts of the United Nations General Assembly. The 1989 meeting instigated a process that reached climax in 1998. In that year, the international community met in Rome where the Rome Statute was adopted, creating the ICC.[6]

The ICC

The Rome Statute came into force on 1st July 2002,[7]giving the ICC jurisdiction over genocide, war crimes, crimes against humanity and aggression, amongst others. It works on the universal principle of “equality of all before the law.” It can only hear cases when the alleged crimes are either committed by citizens that are from states who have signed the Rome Statute or when the crime is committed on the territory of a signatory of the ICC statute.[8]

Since it entered into force, the ICC has made modest strides in ensuring that those who have been accused of the gravest crimes are brought to justice at the international judicial plane. The fact that the court has weathered the international political storm is a remarkable achievement that requires commendation.[9]At its inception, even the Court’s President Judge Sang Hyun Song, declared when he was sworn in that the court was going to have stormy days ahead.[10]

As has already been noted, the entering into force of the Rome Statute and the subsequent establishment of the ICC marked a watershed moment for the protection of humanitarian law and human rights throughout the world. The court is mandated to investigate and prosecute various crimes against the international order.[11]

One of the most outstanding issues in the international legal plane is the controversy between African leaders and the ICC. Since the court was established in 1998, African leaders have been in constant debacle with the court, attracting a rainbow of accusations and counter accusations. This has particularly played out in the indictment of Sudan’s President, Omar Al Bashir.[12]

Jurisdiction of the Court

In the Rome Statute, Article 5 defines the jurisdiction of the court. It states that: “within the jurisdiction of the Court the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.”[13]

The court also works to compliment national judicial systems, meaning that it can only hear cases when national judicial systems are either unwilling or unable to prosecute them.[14]The court has also been developed from scratch: Initially it had 5 employees, but today that number has significantly increased to about 1,100.[15]

The ICC and Africa

One of the issues that has marred the establishment of the ICC has been its controversial focus on the African continent, which has attracted intense criticism. This great rift has come to play out between the court and the leaders of the continent, especially the African Union. Many African leaders have accused the court of being a neo-colonial tool.[16]

This has also led to calls for mass withdrawals from the court by African heads of state. In October 2016, The Gambia became the third country on the continent to pull out of the court, accusing it of being “a Caucasian court.” In pronouncing the departure from the court, the then Gambian Minister of Information and Communications, Sheriff Bojang, said the country was leaving the court due to its bias stance against the continent. The Gambia was the third country to leave following the earlier withdrawal of South Africa and Burundi.[17]

The tension between the court and the African continent has been brought to bear in the statements of Benin’s President, Boni Yayi who said the court is deliberately “chasing Africa.” This negative perception of the court has more than galvanised the African leadership against the court. This show of unity among African leaders against a single issue is not common, but it reveals the perception gap on the continent against the court.[18]

As recent as 2016, the Gambian Chief Prosecutor of the court, Fatou Bensouda during an interview with BBC said that Tony Blair, former British Prime Minister who was complicit in the invasion of Iraq alongside George W. Bush could not be brought to trial because the ICC does not have full jurisdiction over crimes of aggression. In the same vein, a former UK foreign secretary, Robin Cook, was once quoted as saying that the ICC was unlikely to ever try a US President or sitting UK Prime Minister.[19]

Is the ICC biased against Africa?

This is one of the most potent arguments against the court in Africa, as already highlighted. The court has denied that it is prejudiced against leaders on the continent, saying that most of the cases it is handling are referred by African governments themselves. However, to answer this question properly, we need to take a look at the court’s actions in Africa.[20]

Dr. David Hoile in his work,‘Justice Denied: The Reality of the International Criminal Court, a 610-page study of the International Criminal Court published by the Africa Research Centre’, noted that since the court was established, it has received over “9,000 formal complaints,” which alleged war crimes in 139 countries. Unfortunately, as a sign of its partiality, “the ICC has chosen to indict 36 black Africans in eight African countries. In so doing the ICC has ignored all European or Western human rights abuses in conflicts such as those in Afghanistan and Iraq or human rights abuses by Western client states.”[21]

Due to its persistent biased activities on the continent, the ICC has derailed peace processes in countries like Uganda and Sudan. Hoile further noted: “While the ICC’s key first two cases were African ‘self-referrals’ it is now clear that the African governments were made ‘an offer they could not refuse’: refer yourself and we will only indict your rebels–if not we will indict both government and rebels.”[22]

The court has been accused of vindictiveness, partiality and selectivity, while in Colombia and other South American nations, it has been adopting a soft approach. The same cannot be said of Africa. So far, as already noted, all the indictees have been Africans. Due to the callous nature of the Syrian conflict, one will be forced to wonder why former Libyan leader, Muhammad Gadaffi, was indicted while to this day, President al-Assad of Syria and the al-Khalifa regime in Bahrain have not been indicted despite committing far greater crimes than Gadaffi.[23]

The efficiency of the Office of the Prosecutor has come under severe criticism for the way it has carried out certain tasks. In Ivory Coast, “a perceived bias in prosecutions, a lack of impartial information and frustrations regarding access to its proceedings threaten to undermine the credibility of the court.”[24]

The ICC has often claimed that its cases are referred by African governments. How true is this? Precedent has shown that the court inflicted considerable pressure on African leaders to refer their cases to the court. Out of over 500 cases that were analysed by the court, the then prosecutor, Moreno Ocampo Jerry, picked DR. Congo. Independent investigations by the US Congressional Research Service noted the considerable pressure the court brought to bear on African leaders to refer their cases.[25]

In addition, Human Rights Watch made similar observations that “the Office of the Prosecutor actively sought the referrals in the DRC and Uganda.”[26]Interestingly, despite earlier denying that African leaders were forced to refer their cases to the ICC, Ocampo on 17 July 2008, admitted that he had invited Uganda and DR Congo to refer their situations to the ICC.

In countries like Uganda, the court has been accused of investigating the Lord Resistance Army, while ignoring the crimes committed by the Government of Yuweri Musevinni. The same was observed in Ivory Coast, where the former President Gbagbo, was handed over to the court. But allies of the current President Alasan Ouattra, who have been accused of similar crimes, have not yet been handed to the court. What is clear in many of its cases in Africa is that the court provides the perfect opportunity for governments to get rid of their longstanding political opponents.[27]

In many countries, the court has been caught up in the intricate web of national politics. This is the reality in Kenya. The ICC investigations in Kenya followed the breakout of elections violence in December 2007. The elections were thought to have been rigged by then President, Mwai Kibaki.[28]

In protest against the alleged election rigging, ethnic groups who supported Raila Odinga, the main opposition leader, staged protests. The resulting violence reportedly claimed approximately 1,333 lives, and displaced 700,000 people. Investigations conducted by a group of eminent African scholars, led by the former Secretary-General of the United Nations, Kofi Annan, found out that senior government officials such as William Ruto, Joshua Sang, Francis Muthaura and Uhuru Kenyatta were responsible for inciting the violence.[29]

The office of the prosecution has since issued indictments[30]against the four men, and despite initially promising to support the ICC in its investigations, the Kenyan government reneged. Consequently, on 31stMarch 2011, the Kenyan government challenged the admissibility of the cases before the court pursuant to Article 19 of the Rome Statute, requesting that two of the cases be declared inadmissible.[31]

The Kenyan government also argued that legal reforms undertaken by the country would allow it to prosecute alleged perpetrators of the post-election violence. On 30 May 2011, the Pre Trial Chamber 2 of the ICC rejected the challenges to the admissibility of the two cases. On 11thMarch 2013, the prosecution announced the withdrawal of all charges against Francis Muthaura due to a lack of evidence.[32]The ICC has withdrawn the cases against Kenyatta and Ruto.[33]

The Case against Al Bashir

The ICC’s indictment against Sudanese President, Omar Al Bashir, has been one of the most controversial issues surrounding the court. Al Bashir was the first sitting President to be indicted by the ICC. Sudan was not a signatory to the Rome Statute and his case was referred to the ICC by the UN Security Council in 2005. [34]Bashir and his henchmen were alleged to have committed war crimes, crimes against humanity and genocide through a militia force which came to be called the Janjaweed. More than a million people in Darfur were displaced out of a population of six million. As expected, Bashir denied any role in the crimes committed in Darfur.[35]The ICC intervention in the Sudanese Region came after it was reported that 5,000 people died every month, 35,000 were killed by attacks, whilst another 300,000 became refugees fleeing from starvation. Overall, a total of 400,000 people died in the conflict.[36]

It should be noted that Sudan is not a signatory to the ICC statute and this is why the case was referred to the court by the UN Security Council. After the referral, Ocampo opened up investigations to determine the credence of the case under the ICC Statute. In 2008, an international arrest warrant was issued against President Bashir. As commander-in-chief, the Sudanese was alleged to have direct control of the Janjaweed militia. However, the arrest warrant for Bashir has sparked controversy all over the continent.[37]

The African Union has condemned the indictment of African Presidents, including President Bashir. In a statement, the continental body noted: “The abuse and misuse of indictments against African leaders have a destabilising effect that will negatively impact on political, social and economic development of member states and their ability to conduct international relations…”[38]

By the time the court indicted Kenya’s President, Uhuru Kenyatta, for inciting ethnic violence after losing parliamentary elections in 2007, the African Union was thoroughly convinced that they had to take a common stance against the court, agreeing that they will not extradite any serving head of state to The Hague.[39]

The indictment of Bashir and Kenyatta has further led the AU to accuse the court of ignoring international law. The AU said that by indicting sitting heads of state, the ICC is ignoring immunity[40]guaranteed to African leaders from prosecution. These indictments are further making it difficult if not impossible for African leaders to perform functions associated with their offices. The former Ethiopian Foreign Affairs Minister Tedros Adhanom Ghebreyesus said the indictments were as simple as violating the sovereignty of African countries.[41]

The AU has taken a noncooperation stance with the ICC. In a communique, the AU revealed that it will not collaborate with the ICC. The ICC has requested some members of the body to arrest the Sudanese President, but it has failed to comply so far. The Arab League has also refused to recognise the international arrest warrant against Bashir. In addition, the two regional bodies have urged the court to suspend the indictment against the Sudanese President to allow the peace process in the country a fair chance.[42]In 2017, South Africa revealed its intention to pull out of the Rome Statute, following a clash with the court on the arrest of Al Bashir in 2015. Bashir was attending the African Union summit in Johannesburg when the ICC requested his arrest, but South Africa refused to arrest him and subsequently announced that it intended to leave the court.[43]

Enforcement Problem

The enforcement problem is another issue African leaders have had with the ICC. The ICC does not have a police force to enforce its arrest warrants. Due to this, it must rely on state parties to enforce arrest warrants. This has not seemed effective so far – especially in the case of Bashir and Kenyatta. According to Courtney Griffiths, lead defence counsel for ex-President of Liberia, Charles Taylor, one of the most visible challenges facing the ICC is the “absence of the machinery to enforce its writ.” [44]In an article published on the New African Magazine, he noted that lacking its own enforcement mechanism, international tribunals have had to rely on the good will of cooperating states to “execute arrest warrants and bring fugitives to justice.”[45]He however warned that this comes with a plethora of problems: When state parties refuse to indict the indictees, no one will.

In an effort to bridge the big gap in the writ enforcement mechanism of the ICC, the former Chief-Prosecutor of the Court Moreno Ocampo suggested that “special forces” composed of the “coalition of the willing” led by the US should be used to enforce international arrest warrants.[46]Unsurprisingly, given the aggressive military nature of American foreign policy over the past few years – including the invasion of Iraq and Afghanistan – this suggestion has been criticised by many international legal experts.

Following this comment, Courtney Griffiths asked: “what will it mean for justice and the rule of law if international criminal tribunals, now primarily the ICC, come to depend on a military alliance led by the US with its own military agenda and interests... especially when the US declares itself to be above the very law it is being asked to enforce?”[47]

Security Council Indictments

The fact that the Rome Statute has empowered the UN Security Council to refer cases to the court has not gone down well with many African leaders, because it makes non-signatories to come under the jurisdiction of the court possible. This is a great violation of the principle of consent in treaty law, which – according to some legal analysts – has attained the status of customary international law.[48]

The powers of referral by the Security Council has raised further questions of the possibility of super-powers using it as a conduit to further their own political ends in sight.[49]Super-powers like the US have already shown a disliking for the court, opposing it from its birth. President Clinton under whose administration the ICC came into force, faced severe opposition from the American Congress to ratify the Statute.[50]The court encountered even more opposition during the reign of President George W. Bush. President Bush passed the American Service Members Protection Act of 2002, which later came to be called the “Hague Invasion Act”, because of its hostility to the ICC.[51]The law was so strident in its antagonism to the ICC that it threatened to sanction any American lawyer who worked on a case in the ICC involving an American citizen. More worrying than this is the fact that it gave US troops the power to invade The Hague and free any American citizen being tried by the court.

In furtherance of his anti-ICC sentiments, Bush signed bilateral immunity agreements with many ICC members. These agreements forbid countries from handing over American citizens to the court. It went to the extent of threatening countries who refused to sign with reduction in their aid. The new African Magazine reports that despite the fact that 53 countries had refused to sign the agreement, countries that feared reduction in US aid had to chicken out and sign the agreement.[52]

Super-power opposition to the ICC has come from other global powers. Many powers have refused to ratify the Rome Statute. By March 2012, China, India, Japan, Russia had refused to be party to the Rome Statute. This puts 70% of the world’s population outside the Court’s jurisdiction.[53]

According to American commentator, John Rosenthal, “Seven of the ratifiers taken together – San Marino, Nauru, Andorra, Liechtenstein, Dominica, Antigua and Barbuda, and the Marshall Islands – have a population of roughly 347,000, which is less than the population of New York’s smallest borough of Staten Island.”[54]

Conclusion

From this writing so far, it is clear that the ICC has been in turbulent waters since its inception. To some extent, claims that the court is focusing on the African continent may not be without merit. There is substantial evidence that the court has indeed been fishing most if not all its cases from the African continent.[55]

Is this as a result of bias? Firstly, much of the criticism against the court by African leaders stems from their efforts to deflect their own shortcomings and complicity in the grave human rights breaches on the African continent. The ordinary people of Africa have for long suffered in the hands of many of our leaders since the independence days. Wars in places like Rwanda, Burundi, Congo, the Central African Republic, Sierra Leone, Liberia, Sudan and Chad amongst others have led to millions of deaths. The African leaders seem to be at best unable or unwilling to help their own people find the course of justice. In some of the situations where the court has intervened, it is undeniable that the absence of viable alternative justice systems has made it possible. A cursory look at the justice system on the continent reveals a total lack of effective institutions to deal with the disdainful human rights situations in many parts of the African continent.[56]

The African Human Rights Court and the Court of Justice, which have been proposed as viable solutions to the ICC, have so far been pipedreams. Even among the leaders of the continent who proposed its formulation, many of their states have not ratified the change. Besides, it is not seen how these African leaders who are not answerable to their own domestic jurisdictions will be answerable to any legal mechanism at the continental level. Such reticence on justice in the continent among African leaders only makes the essence of the ICC more cogent.[57]

Enshrining the principles of good governance and democracy in the daily lives of Africans must be a rule-of-thumb. It is heartbreaking that the African continent, which is the richest, continues to be the wretched of the earth. The majority of our people live like paupers while our resources benefit outsiders. We must empower our people to use their ingenuity to enhance Africa’s progress. Until then, the reasons that make the ICC pry its eyes on Africa will endure unobstructed.[58]

Finally, Africans and their leadership must be willing and ready to find their rightful voice in global affairs. It is sad that we are always ready to pen signatures to any international treaties just to appear virtuous to the transnational municipal of states, without really looking into the real issues behind the treaties. Also, the web of control against Africans must be put to the past. For example, even after leaving the ICC, the leaders could still be prosecuted through the Security Council. The Council is not only predisposed in its composition; it is also likely to continue being used as a device of subjugation against Africans who have no voice in it.[59]

[8]Schmidt TM, “2.1. Preliminary Remarks: Interpreting the Rome Statute” [2015] Crimes of Business in International Law 34

[9]Ibid

[10]“Justice in Conflict | On the Challenges of Pursuing Justice” <https://www.bing.com/cr?IG=DA9AA88BEA564AAA808FB50B073EABD3&CID=

[11]Pisani B, “The Rome Statute and Domestic Proceedings for Ordinary Crimes: The (In)Admissibility of Cases before the International Criminal Court” The Diversification and Fragmentation of International Criminal Law 461

[40]It should be noted that under the Rome Statute, immunity does not preclude one from being held liable for crimes under the court. In Article 27(2) it is stated that “immunity or procedural rules under national legal systems would not immunize him from criminal responsibility under the Rome Statute.

[45]In an article on New African Magazinein March 2012 entitled the Politics of International Criminal Law, Courtney Griffiths also bemoaned the fact that executing arrest warrants have been more precarious during conflicts and civil wars where the machinery of states are weaker and more vulnerable.

[46]See above.

[47]Ibid.

[48]Ibid

[49]Ibid

[50]“ICC, A Tool To Decolonize Africa” (1st March 2012) New Africa Magazine Article available at: http://www.newafricanmagazine.com/special-reports/sector-reports/icc-vs-africa/icc-a-tool-to-recolonise-africa

[52]Ibid

[53] “Jurisdiction, Admissibility and Applicable Law” Rome Statute of the International Criminal Court : A Commentary

[54]Ibid

[55]Cryer R, “The International Criminal Court And Its Relationship To Non-Party States” The Emerging Practice of the International Criminal Court 115